Tag Archives: article 14

Constitutional Problems with the Exclusion of Jurisdiction in the Coal Block Cases

(In this guest post, Abhinav Sekhri takes on from his previous analysis of the Girish Kumar Suneja Case, and demonstrates the various constitutional issues that arise out of the manner in which the Supreme Court has excluded the jurisdiction of the High Courts in certain criminal cases. This essay has been cross-posted from The Proof of Guilt blog).

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:
  • Directed the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
  • Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
  • Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments).

On January 24, 2017, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional.
Testing Article 14
In Anwar Ali Sarkar v. State of West Bengal [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C.
The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed).
In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster.
Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place.
Just, Fair, and Reasonable?
The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.
In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.
As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case.
Violating the Basic Structure?
The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].
Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1995) 1 SCC 400] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.
Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal.”


Filed under Access to Justice, Article 21 and the Right to Life, Article 226 Remedies, Basic structure, Equality, Jurisdiction

Guest Post: Consistency across Statutes and Article 14 in Harsora vs Harsora – A Further Critique

(This is a guest post by Rahul Bajaj, a final-year law student at the University of Nagpur)

On this blog, there has been a discussion of (see here and here) Justice Nariman’s recent judgment in the case of Hiral P. Harsora versus Kusum Narottamdas Harsora and Ors., in which Section 2(Q) of the Protection of Women from Domestic Violence Act of 2005 (“the Act”) was struck down as being violative of Article 14 of the Constitution. In his comment on this judgment, Gautam described the case as a “textbook application of Article 14 doctrine”, inasmuch as Justice Nariman found that the distinction that Section 2(q) created between adult male and female respondents and between adult and non-adult male respondents, was not founded upon an intelligible differentia and did not bear a rational nexus with the object of the statute.

However, I would submit that the judgment, far from being a textbook application of Article 14, marks a significant departure in how Indian constitutional Courts construe the reasonable classification doctrine and apply it to assess the constitutionality of any statute against the touchstone of Article 14. This assertion is based on the fact that the Court factored into its analysis, and I would argue gave prime significance to, factors that have no place in an Article 14 inquiry.

A clarification here would be in order. In the paragraphs that follow, I will only be critiquing one prong of the Court’s reasoning viz. reliance on the need for internal consistency in statutes as a ground to declare Section 2(q) unconstitutional. In other words, I believe that the Court’s holding that the classification created by Section 2(q) is unreasonable, given the object and overall scheme of the Act, cannot be faulted.

While no one can cavil at the approach outlined by the Court in para 10 for assessing the constitutionality of a statute against the touchstone of Article 14 viz. looking at the statement of objects, text of the preamble and the provisions of the statute as a whole, this judgment would not have warranted closer scrutiny if the Court had confined its inquiry to faithfully adhering to this approach. Instead of doing so, however, the Court seems to have been unduly influenced by the desire to ensure internal consistency and uniformity in statutes regulating the lives of women in different spheres.

This assertion is based on the Court’s statement in para 18 which deserves to be quoted in full:

As has been rightly pointed out by Ms. Arora, even before the 2005 Act was brought into force on 26.10.2006, the Hindu Succession Act, 1956 was amended, by which Section 6 was amended, with effect from 9.9.2005, to make females coparceners of a joint Hindu family and so have a right by birth in the property of such joint family. This being the case, when a member of a joint Hindu family will now include a female coparcener as well, the restricted definition contained in Section 2(q) has necessarily to be given a relook, given that the definition of ‘shared household’ in Section 2(s) of the Act would include a household which may belong to a joint family of which the respondent is a member. The aggrieved person can therefore make, after 2006, her sister, for example, a respondent, if the Hindu Succession Act amendment is to be looked at. But such is not the case under Section 2(q) of the 2005 Act, as the main part of Section 2(q) continues to read “adult male person”, while Section 2(s) would include such female coparcener as a respondent, being a member of a joint family. This is one glaring anomaly which we have to address in the course of our judgment.

As the above extract unequivocally indicates, after noting that the definition of ‘respondent’ under Section 2(q) needs a relook on account of the amendment of Section 6 of the Hindu Succession Act, the Court seamlessly arrogates to itself the task of rectifying what it characterizes as a glaring anomaly. I would submit that this line of reasoning suffers from two grave flaws.

First, while ensuring internal consistency in statutes that deal with related subjects is doubtless a desirable objective, it is submitted that it is not the task of a court, much less of a court adjudicating upon the constitutionality of a statutory provision in accordance with well settled principles, to regard the attainment of this object as a key consideration that ought to undergird its judgment.

Second, the Act was enacted on 13th September, 2005 and the amendment to the Hindu Succession Act, as the Court itself notes, came into force on 9.9.2005, thereby indicating that the latter preceded the former. This being the case, if the legislature did not think it fit to craft the definition of ‘respondent’ in the Act in such a way as to bring it in line with the amendment to the Hindu Succession Act, it is difficult to fathom how the Court could have tasked itself with this responsibility.

Further, in para 42 of the judgment, the Court takes note of the definition of ‘respondent’ in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which definition is not circumscribed by the words ‘adult male’. Justifying its reliance on this definition, the Court notes that it indicates that “Parliament itself has thought it reasonable to widen the scope of the expression “respondent” in the Act of 2013 so as to be in tune with the object sought to be achieved by such legislations.”

Far from fortifying the Court’s conclusion, I would submit that it reinforces the flaw in the Court’s reasoning. More specifically, since the Court acknowledges that the widened definition of ‘respondent’, statutorily engrafted in the 2013 Act, is reflective of a conscious decision by Parliament to bring female respondents within the ken of the Act, does it not logically follow that the exclusion of female relatives from the definition of ‘respondent’ in Section 2(q) of the Act is the outcome of a conscious decision taken by the Parliament? If that be so, it is difficult to fathom how the Court could have use the 2013 Act as the foundation for its conclusion that Section 2(q) is unconstitutional, considering that Parliament adopted two different interpretations of ‘respondent’ on the basis of the distinct purposes that the two laws were designed to serve.

In sum, while this judgment will undoubtedly bring in greater consistency in the statutory architecture regulating the lives of women in different spheres, it is submitted that this can be no reason to declare a statutory provision unconstitutional. To the extent that this judgment uses this justification for holding Section 2(q) unconstitutional, I would respectfully submit that it rests on an intellectually shaky foundation and is inconsistent with the well settled principles that should inform an Article 14 inquiry.

(PS: My thanks to Prof. Shirish Deshpande for helping me acquire a nuanced appreciation of the ideas embodied in this article.)

1 Comment

Filed under Article 14, Equality

Addendum: The Impact of the S. 2(q) Judgment upon the Marital Rape Exception

Previously on this blog, we have discussed the marital rape exception under the Indian Penal Code. Recall that Section 375 of the Indian Penal Code sets out the ingredients of the offence of rape. Exception 2 to Section 375 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” I had argued earlier that Exception 2 creates two classes of women – married and unmarried (for the moment, let us ignore the intermediate category of separated women, who fall within S. 376B of the IPC), and accords unequal protection of law to these classes. It does likewise with men, and consequently, infringes Article 14 of the Constitution.

The objection to this line of argument is as follows: the effect of striking down Exception 2 would be to create a new offence altogether: the offence of marital rape. This is, in essence, a legislative task. Consequently, a Court, exercising judicial functions, will be overstepping its jurisdiction if it legislates a new crime.

How persuasive you find this objection depends upon whether you read Exception 2 as classifying acts or classifying persons (a distinction made notorious, of course, in Koushal vs Naz). Yesterday, however, we discussed the judgment of the Supreme Court in Hiral P. Harsora vs Kusum Narottamdas Harsorawhere Justice Nariman, writing for a two-judge bench, struck down S. 2(q) of the Domestic Violence Act on the ground of an Article 14 violation. In my view the Court, in Hiralal P. Harsora, did precisely what it would need to do to strike down the marital rape exception. Recall that S. 2(q) of the DV Act stated:

“….“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

Just like the marital rape exception, S. 2(q) effectively stipulated that acts of “domestic violence” (defined in S. 3 of the Act) would not fall within the DV Act if they were committed by female and/or persons (who were not relatives of a husband or male partner). The Court reasoned that this classification bore no rational relation with the purpose of the Act, which was to protect women from domestic violence “of all kinds”. The effect of the Court’s judgment was to widen the ambit of the DV Act by ensuring that henceforth females who committed domestic violence could be proceeded against under the Act. Or, if you want to put it another way, the Court legislated a new offence (albeit not a criminal offence): commission of domestic violence by females (who are part of a domestic relationship). Transposing this logic to the marital rape exception the argument is straightforward: the marital rape exception stipulates that husbands who commit rape do not fall within the ambit of S. 375 IPC. This classification bears no rational relation with the purpose of the Section or the IPC (i.e, to prevent and punish crime). The effect of striking down the Exception will be to widen the ambit of S. 375 by ensuring that henceforth husbands who commit rape can be proceeded against under S. 375. This might amount to “legislating a new offence” – but the Court just did that last week.

An immediate objection may be raised: S. 2(q) of the DV Act was part of the definitional section, while S. 375 IPC stipulates the ingredients of the crime of rape. The two are not equivalent, therefore, and it is only in the latter case that constitutional invalidity would result in legislating a new offence. In my view, however, the distinction is only a semantic one. As described above, what the Court is doing in the two cases is the same thing, and the result is the same. In both cases, two things are happening: an act that was not previously an offence is now an offence (commission of domestic violence by females and commission of rape by husbands); and a class of persons that were previously exempted from liability for committing the same act (females committing domestic violence and husbands committing rape). The basis is also the same: the two enactments tackle a certain kind of offence (domestic violence, rape), and consciously leave out a class of persons from liability, even though that class of persons might – in the non-legal sense – commit exactly that offence. Whether this is done through the definitional section or the ingredients section is a question of legal form, and not relevant to an Article 14 enquiry.

However, at this stage, a further objection may be made: the previous argument only deals with the act that constitutes the offence. S. 375, however, does not merely punish sexual intercourse, but punishes sexual intercourse without consent. The marital rape exception is based upon the premise that within marriage, spousal consent to sexual intercourse is presumed. Whatever the validity of this assumption, it is open to the legislature to make it; more importantly, if this is the basis of Exception 2, then it takes the provision out of the ambit of Article 14 altogether, and also dispenses with Hiralal P. Harsora as precedent.

It is no doubt true that the underlying assumption of Exception 2 is the doctrine of presumed consent within marriage. However, that is not what the Exception says. Had the Exception stated that “Sexual intercourse by a man with his own wife is deemed to be with her consent“, then it would have been a different matter.

It might be objected, however, that this is precisely the semantic distinction that we have argued against above. Section 375 is entirely about the question of consent. Consent is built into the definitional clauses. Consequently, the only reasonable way to read Exception 2 is to read it as stipulating deemed consent.

Such a reading, however, would put Exception 2 at odds with the rest of the IPC. Consider Section 87 of the IPC:

“Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.”

Now, while Exception 2 states that marital rape is not “rape”, legally defined, it does not exempt marital rape from falling within other sections of the IPC. Prima facie, marital rape could constitute hurt (S. 319), wrongful restraint (S. 339), use of criminal force (S. 350), and sexual harassment (S. 354A). Now, under the doctrine of presumed consent, none of these offences could apply to sexual intercourse between husband and wife, since Section 87 would kick in. Consequently, there ought to have been a marital exception – along the lines of Exception 2 to Section 375 – for each of these provisions. However, there isn’t. Consequently, the doctrine of presumed consent cannot be taken to be the only explanation for the marital rape exception.

In fact, the explanation that is most commonly given – and which was invoked during the recent public debates on marital rape – is that the Exception is necessary in the interests of family unity and integrity. Whatever one may think about the merits of this answer, and the further argument that it family unity is a legitimate legislative purpose under Article 14, it is important to note that this argument is also excluded by Hiralal P. Harsora, since Justice Nariman, in that case, clearly derived the legislative purpose from the statement of objects and reasons and preamble of the DV Act, and did not engage in a roving enquiry about other possibly justified purposes. Under this framework, it is immediately clear that family unity is no part of the legislative purpose underlying the IPC as a whole, or Chapter XVI (“offences affecting the human body”), or even S. 375. The IPC is a criminal statute, and its purpose is the prevention, detection, deterrence, and punishment of crimes. And it is impossible to conceive of a defence of the classification drawn by the marital rape exception that bears a rational relation to these goals.

Consequently, I would argue that the reasoning in Hiralal P. Harsora, if applied consistently, leaves the Supreme Court with no other option but to strike down the marital rape exception as unconstitutional, if and when a challenge was brought before it.


Filed under Article 14, Equality, Marital Rape

The Invalidation of S. 2(q) of the Domestic Violence Act: A Comment

Last week, a two-judge bench of the Supreme Court struck down Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 [“DV Act”], on the basis that it violated Article 14 of the Constitution. Section 2(q), which is part of the definitional clause of the DV Act, read:

“…”respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

To understand what, precisely was at issue, it is also important to set out the definitions of “aggrieved person” and “domestic relationship”. Section 2(a) defined an “aggrieved person” to mean “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defined domestic relationship as “a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

The effect of Section 2(q), therefore, was that insofar as a domestic relationship was concerned, an aggrieved woman could proceed only against male perpetrators of domestic violence. However, if the domestic relationship was a marriage or a relationship in the nature of a marriage, the aggrieved woman could file complaints against the relative of her husband/male partner. It is important to note that it is, by now, settled law, that under the proviso to Section 2(q), women could be respondents. Consequently, the distinction drawn by S. 2(q) was between marriages/relationships in the nature of marriage on the one hand, and other domestic relationships on the other. In the former case, female relatives of the husband/male partner could be made respondents, while in the latter, a respondent could only be an “adult male”.

The Supreme Court found that this distinction was irrational, arbitrary, and contrary to Article 14. For the most part, the judgment is a textbook application of Article 14 doctrine, and needs no comment. However, a couple of interesting issues do arise out of the judgment, which deserve to be examined.

The first is the issue of legislative purpose under Article 14. Relying upon Shashikant Laxman Kale vs Union of India and Harbilas Rai Bansal vs State of Punjab, Justice Nariman held that the Statement of Objects and Reasons and the Preamble of the DV Act must be examined to discern its purpose. Reading the two together, he found that the purpose of the Act was to “provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family.” (emphasis his) (paragraph 16) In light of the wide definition of ‘domestic relationship’, which included members of both sexes (paragraph 18), the amendments to the Hindu Succession Act that now made women co-parceners in a joint family (paragraph 18), the gender-neutral definition of “domestic violence” under Section 3 of the DV Act (paragraph 19), and the fact that the remedies under the Act (such as protection and residence orders) could easily be defeated if “respondent” was limited to adult male persons (paragraph 20), he then held that the classification under S. 2(q) failed the rational relation test under Article 14. This was not just true for “male”, but for “adult” as well, since it was easy to envisage 16 and 17- year olds engaging in acts of domestic violence within shared households (paragraph 24). The linchpin of Justice Nariman’s opinion, which he repeated, was that “the classification of “adult male person” clearly subverts the doctrine of equality, by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence.” (paragraph 31) The phrase “domestic violence of any kind” was repeated in paragraph 36.

In short, therefore, the Court struck down S. 2(q) on the basis that the distinction it drew between the persons who could be arraigned as respondents in the case of marital relationships, and other kinds of domestic relationships, bore no rational relation with the purpose of the Act, which was to protect women against domestic violence of “any kind”, or of “all forms”. This legislative purpose was drawn from its statement of objects and reasons and the Preamble.

It is important, however, to draw a conceptual distinction between two kinds of “legislative purposes”. In the first sense, “legislative purpose” is what the legislature actually had in mind (to the extent that collective purposes make sense) when enacting the statute, something that a Court can determine by looking at the text and surrounding documents of the law. This is what Justice Nariman did in the present case. Call this the “intended purpose“. In the second sense, “legislative purpose” is a purpose that can be justifiable attributed to a statute, regardless of whether or not it was actually within the contemplation of the legislature while drafting the law. Call this the “justified purpose“. In this case, after having found that the stated purpose of the Act was to protect women against domestic violence of “all kinds”, and that the S. 2(q) classification did not serve this purpose, Justice Nariman did not ask (and indeed, the State did not propose) whether S. 2(q) could be plausibly justified in relation to any other possible legislative purpose. Here is one possible candidate:

The Domestic Violence Act understands “domestic violence” as not simply violent acts committed by one person upon another within a domestic setting, but as a problem that flows from differential, structural power relations between men and woman in the family (which is why only women can be complainants under the Act), and therefore, primarily seeks to prevent male-on-female violence. While we may disagree with this framing, it is within the realm of legislative discretion to make this call. This accounts for S. 2(q). However, the legislature was also cognisant of the fact that the marital relationship is a space where women are specifically vulnerable, in no small part because in many circumstances they must leave their homes and live with their husband’s family. Consequently, the legislature chose to carve out a proviso to S. 2(q) to deal with the heightened vulnerability of women in marital relationships.

I am not arguing that this restated purpose of the Domestic Violence Act would necessarily clear Article 14 scrutiny. It might be argued, for instance, that even if one is to accept the argument that domestic violence is structural and institutional, acts of domestic violence can and are committed by both men and women – and so, even if we were to take the above argument on its own terms, it would fail the test of rational classification (in that case, however, the Court would also have to explain why the legislature’s identification of the specific harm that it was seeking to prevent was irrational and could be overridden in a judicial enquiry). What I am arguing, however, is that principles of judicial deference and the presumption of constitutionality would require the Court to adopt a generous approach towards the determination of legislative purpose, which would include, at times, reconstructing legislative purpose in a manner that would make the strongest case for the constitutionality of the law. If, even then, the law failed Article 14 scrutiny, then of course, it would need to be struck down.

As an aside, it is also interesting to take note of the path that this judgment did not take. Recall that in Yusuf Abdul Aziz vs State of Bombay, the Supreme Court upheld the constitutionality of adultery law against a gender-equality challenge (women are not liable in case of adultery) on the basis that it was saved by Article 15(3) of the Constitution (“special provisions for women and children”). An argument could have been made in this case that exempting a class of women from legal liability was exactly what was done in Yusuf Abdul Aziz, and upheld under Article 15(3). The problems with that approach are too many to list out here, and so, it is certainly a good thing that the Court showed no signs of retracing its steps along that road.



Filed under Article 14, Equality

Haji Ali Dargah: Bombay High Court Upholds Women’s Right to Access the Inner Sanctum

In an important judgment delivered today, the Bombay High Court upheld the right of women to access the inner sanctum of the Haji Ali Dargah, and also held that, consequently, the Haji Ali Dargah Trust’s decision to exclude them was illegal and unconstitutional. Previously, on this blog, we discussed some of the legal and constitutional issues arising out of this case, concluding that there were good constitutional arguments in favour of the right of access.

Coming in at 56 pages, the Bombay High Court’s judgment is a crisp and lucid elucidation of the existing state of religious freedom jurisprudence under the Constitution, as well as application of that jurisprudence to the facts of this case. The Court began by recounting the three reasons provided by the Trust for barring women’s entry; first, that “women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts… [secondly] for the safety and security of women; and [thirdly] that earlier they [i.e., the Trust] were not aware of the provisions of Shariat and had made a mistake and therefore had taken steps to rectify the same.” (paragraph 5) It is this last reason that needed to be considered in the greatest detail, since it went directly to the heart of the Constitution’s religious freedom guarantees, granted to both individuals and to religious denominations.

In dealing with this submission, the Court considered the minutes of the meeting which had led to the Dargah Trust passing the Resolution to exclude women. Four reasons emerged out of the minutes, which overlapped with (but were not identical to) the three submissions made in Court; first, that the women being in close proximity to the grave of a saint was a “sin” in Islam; secondly, that the Trust had the fundamental right to manage its own affairs in the matters of religion under Article 26 of the Constitution; thirdly, that it was in the interests of the safety and security of women; and fourthly, at no point were women allowed to come within the proximity of the dargah (paragraph 22) This last issue was quickly disposed off by the Court, since the record made it clear that until 2011 -12, women were, as a matter of fact, allowed into the inner sanctum (paragraph 23).

This brought the Court to the core argument, which was based upon the Trust’s interpretation of Islam. The Trust argued that the Quran and the Hadith prohibited proximity of women to the tomb of a male saint, that menstruating women were ‘unclean’, and that men and women had to be separated at holy places. To substantiate this argument, it placed verses from the Quran as well as the Hadith before the Court. The Court found, however, that none of these texts stated that the presence of women in proximity to the tomb of a saint was a “sin”, and nor did they support “the absolute proposition” for banning the entry of women into the inner sanctum because of the need for “segregation”. While the Petitioners had also produced verses from the Quran in support of gender equality, the Court held that there was no need to go into these, since the Trust, on its own terms, had failed to show that the entry of women into the inner sanctum was a sin under Islam (paragraph 26).

The Court then turned to the arguments under Article 25 (freedom of religion), and Article 26(b) of the Constitution – namely, that every religious denomination, or section, had the right to mange its own affairs in matters of religion. On Article 25, relying upon the long-standing religious freedom jurisprudence of the Supreme Court, the Court first invoked the “essential religious practices test” – i.e., was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of Islam? According to the Court, the test for an “essential practice” was that it must  “constitute the very essence of that religion, and should be such, that if permitted, it will change its fundamental character” (paragraph 29). This being the case, the Court found that the Trust had failed to demonstrate that Islam did not permit the entry of women into Dargahs/Mosques, a claim that was further weakened, given that women had been allowed entry up until 2011 – 2012 (paragraph 31). Of course, the Trust argued that it was only after 2011 that its attention had been drawn to what the Sharia actually required; to this, the Court’s swift response was that the Trust had placed nothing on record to show what specific aspects of the Sharia had been drawn to the Trust’s attention that changed the position so drastically (paragraph 31).

The Court then turned to Article 26(b), which guaranteed to religious denominations the right to manage their own affairs in matters of religion. The Court first went into the history of the Trust itself, and its operations. It noted that the Haji Ali Dargah stood on public land, leased to the Trust by the Government; a scheme for managing the Trust was drawn up by a government-appointed commissioner in 1936; the role of the Trustees was to prepare books of account, conduct business, maintain the properties, and so on (paragraph 33). This enquiry was important, because under the Supreme Court’s Article 26(b) jurisprudence, especially insofar as it concerns the rights of trusts or maths, a distinction must be drawn between religious activities on the one hand, and secular activities bearing the trappings of religion on the other (unlike the essential practices test, this distinction is actually grounded in the Constitutional text – for instance, Article 25(2)(a), which permits State intervention into secular aspects of religious practice – as well as the Constituent Assembly Debates). Consequently, the Court found that:

“The aims, objects and activities of the Haji Ali Dargah Trust as set out in the Scheme are not governed by any custom, tradition/usage. The objects of the Haji Ali Dargah Trust are in respect of purely secular activities of a non-religious nature, such as giving loans, education, medical facilities, etc. Neither the objects nor the Scheme vest any power in the trustees to determine matters of religion, on the basis of which entry of woman is being restricted.”

It’s important to note here that unlike many other cases before it, the Court did not here get into the question of whether the exclusion of women from the dargah was a “religious” question or not. It simply held that the Trust was never authorised to deal with matters of religion, and that therefore, Article 26(b) was not even attracted in the first place. And there was a further reason why Article 26(b) could not apply:

“Admittedly, the Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a place of worship, all the rigors of Articles 14, 15 and 25 would come into play and the respondent No. 2 Trust cannot justify its decision solely based on a misreading of Article 26. The respondent No. 2 Trust has no right to discriminate entry of women into a public place of worship under the guise of `managing the affairs of religion’ under Article 26 and as such, the State will have to ensure protection of rights of all its citizens guaranteed under Part III of the Constitution, including Articles 14 and 15, to protect against discrimination based on gender.” (paragraph 36)

In other words, the Dargah’s public character took it out of the protective scope of Article 26(b), and made it subject to Articles 14, 15 and 25 of the Constitution. This is a fascinating point, especially given the long history of temple-entry movements in India. Ever since the time of Ambedkar, temple-entry movements have framed the basic question as being about access to public spaces, a right that could not be curtailed on grounds of caste etc. In this case, the form of the Trust – as well as the fact that the Dargah was “open” to all – allowed the Court to hold that the question of access was of a “public” character, and therefore, impliedly, outside Article 26(b).

The Court then went on to hold, however, that even if it was attracted, Article 26(b) could not override other constitutional provisions:

“Infact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution.” (paragraph 36)

With respect, this might not be correct. It is, in fact, Article 25 of the Constitution that contains the prefatory term “Subject to other provisions of this Part…” This suggests that when the framers wanted to subordinate one provision of Part III to the others, they did so expressly. The omission of this phrase in Article 26 would suggest, therefore, that it is 25(1) that is subject to 26 (in case of a clash), and that, at the very least, more work must be done before holding that Article 26(b) is subject to Articles 14 and 15.

Lastly, the Court swiftly disposed off the ‘women’s security’ argument, holding that it was for the Dargah (as well as the State) to take effective steps to guarantee the security of women, instead of banning them outright (paragraph 37). It ordered, therefore, that status quo be restored, i.e. “women be permitted to enter the sanctum sanctorum at par with men.”

The reader will note, at this point, that a final step in the argument appears to be missing. Even after holding that the arguments of the Dargah, based on Articles 25 and 26 failed, on what legal or constitutional basis were the women enforcing their right of access against the Dargah? The Dargah was not, after all, a State body, and consequently, there could be no direct relief against it under Articles 14, 15, or 25. The Court didn’t address this question separately, but the answer is found back in paragraph 18:

“… the State cannot deprive its citizens of the constitutional rights guaranteed under Articles 14 and 15. It would then be the Constitutional responsibility of the State to ensure that the principles enshrined in the Articles 14 and 15 of the Constitution are upheld. Article 14 of the Constitution guarantees that `the State shall not deny any person equality before the law or the equal protection of the law within the territory of India’ and Article 15 guarantees `the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The State would then be under a constitutional obligation to extent equal protection of law to the petitioners to the extent, that it will have to ensure that there is no gender discrimination.”

In other words, what the Court held was that under Part III, the State did not merely have a negative obligation not to infringe fundamental rights. Rather, it had a positive obligation to prevent a private party from infringing upon another private party’s fundamental rights (this, I argued before, was a move open to the Court in light of the Supreme Court judgments in Vishaka and Medha Kotwal Lele). In technical terms, this is called “indirect horizontality” (discussed previously here). If a private party is infringing my fundamental rights, I cannot move the Court directly against that private party, and ask the Court for relief against it; I must make the State a Respondent, and ask the Court to direct the State to take necessary action in order that I may vindicate my fundamental rights (by deploying police, security, or whatever else). And interestingly the petitioners in this case did make the State a party – in fact, the State was the First Respondent.

Let us now summarise the structure of the judgment:

  1. The Haji Ali Dargah Trust justified the exclusion of women from the inner sanctum on the basis of the freedom of religion (Article 25(1)), and the right of religious denominations to manage their own affairs in the matters of religion (Article 26(b).
  2. The Court rejected the Article 25(1) argument on the basis that the Trust had failed to place any material on record to demonstrate that the exclusion of women from dargahs was an “essential feature” of Islam. The Dargah’s claims were thrown further into doubt by the fact that women had been accessing the sanctum up until 2011 – 12.
  3. The Court rejected the Article 26(b) argument on the basis that:
    1. The Scheme of the Dargah Trust did not allow it to adjudicate upon religious matters. Hence, Article 26(b) was not attracted.
    2. The Dargah Trust was a public charitable trust, and the Dargah was a public space open to all. Hence, Article 26(b) was not attracted.
    3. Even if Article 26(b) was attracted, it was overriden by Articles 14, 15 and 25(1)
  4. The exclusion of women from the inner sanctum of the Dargah violated their rights under Articles 14 (equality), 15(1) (non-discrimination) and 25(1) (freedom of religion).
  5. Consequently, insofar as the Dargah Trust was impeding the women’s enjoyment of their fundamental rights, they were entitled to call upon the State to perform its positive obligations under Part III of the Constitution, and vindicate their rights by taking appropriate enforcement-oriented action.

By way of conclusion, let me make two points. On this blog, I have strongly opposed the “essential features” test as being a doctrinal, historical and philosophical mistake (see here), and proposed an alternative interpretation of Articles 25 and 26 (see here). If, however, there is to be a change, that change must be initiated by the Supreme Court, sitting in a bench of appropriate strength (at least seven judges). Whatever the Bench’s personal views on the essential religious practices test, sitting as the Bombay High Court, they had no choice but to follow and apply it. This they did. What is important to note, however, is that they applied it in a narrow, circumspect, and sensitive manner, and to the extent that they necessarily had to. They limited themselves to examining only the material placed on record by the Trust. Even though the Petitioners had placed on record material arguing that Islam mandated gender equality, the bench refused to make observations on that point, one way or another. Unlike far too many previous cases, they refrained from making grand, overarching claims about the religion before them. Given that the whole problem with the essential practices doctrine is that it allows judges to impose an external view upon the lived practices and traditions of the community, the Bombay High Court’s reticence in doing that must be applauded.

This brings me to the second, related point. Over the past few years, cases of this sort – which involve issues of fundamental rights, religion, and gender equality, among others, have seen much judicial grandstanding. There have been broad and sweeping statements, which do not stand up to rigorous scrutiny, very little attention to the Constitution and to legal doctrine, and the privileging of rhetoric over reason. The Bombay High Court’s judgment is the exact opposite of all this. The bench decided the case on closely-reasoned legal grounds (as any court must) refused the obvious temptation of buccaneering into the political and religious thicket, and avoided doing anything more than was absolutely necessary for deciding the case. If we criticise the judiciary when it plays to the galleries, we must also praise it when it abstains from doing so. For that reason, apart from everything else, today’s judgment deserves much praise.





Filed under Access to Religious Spaces, Essential Religious Practices, Freedom of Religion, Secularism

The Bombay High Court’s beef ban decision – II: On the Unconstitutionality of the Reverse Onus Clause (Guest Post)

(In this guest post, criminal law specialist Abhinav Sekhri examines the concurring opinion of Gupte J., which struck down Section 9B of the Maharashtra Animal Preservation Act (the reverse burden clause)

In a post yesterday, the Resident Author of this Blog engaged in a thorough analysis of various aspects of the decision delivered by the Bombay High Court in Sheikh Zahid Mukhtar v. State of Maharashtra. Consideration of the issues discussed by the separate opinion of Justice Gupte was left, which is what I seek to address. Justice Gupte tackles Section 9-B of the Maharashtra Animal Preservation (Amendment) Act, 2015 [hereafter, the Act], which reads:

In any trial for an offence punishable under sections 9 or 9A for contravention of the provisions of this Act, the burden of proving that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act, shall be on the accused.

The separate opinion struck down Section 9-B of the Act as unconstitutional. In this comment, I first give a basic introduction to reverse burden (or reverse onus) clauses, moving on to discuss the specific reasoning adopted in the Separate Opinion for holding the provision unconstitutional.

An Introduction on Reverse Burdens


Ordinarily, in criminal cases the burden to establish the guilt of an Accused rests on the state. This dovetails with the essential principle of every Accused having a presumption of innocence in her favour. Over time, though, many statutory inroads have been made into this principle. Beginning with requiring an Accused to establish certain facts (evidential burdens), today there are several instances of Accused persons requiring to establish innocence itself (legal burdens). The Supreme Court held these clauses to be constitutional even where they impose legal burdens, in Noor Aga v. State of Punjab [(2008) 16 SCC 417].

Consider an example from the Narcotic Drugs & Psychotropic Substances Act, 1985 [hereafter, NDPS Act]. This employs two reverse-burden clauses. Section 54 of that Act creates a presumption that the Accused is guilty of an offence, if she fails to ‘satisfactorily account’ for possession of contraband. Section 35 states that in a prosecution under the NDPS Act, it would be presumed that the Accused has the ‘culpable mental state’ necessary for the offence.

How these operate was clarified by the Supreme Court in Inder Sain v. State of Punjab [(1973) 2 SCC 372, a case under the old Opium Act, 1878]; Noor Aga v. State of Punjab [(2008) 16 SCC 417]; Dharampal Singh v. State of Punjab [(2010) 9 SCC 608]; Bhola Singh v. State of Punjab [(2011) 11 SCC 653]. According to these decisions, the prosecution must prove initial facts – there was contraband, and it was in the conscious possession of the Accused – which creates a presumption of guilt, shifting the burden on the Accused to rebut that presumption. Note, though, that the prosecution is not required to prove that the Accused was knowingly in possession of the contraband itself. For instance, in Dharampal, 65 kg of Opium was recovered from the boot of the car owned and driven by the Accused. The prosecution was not required to prove that the Accused knew that the boot had the contraband. The presumption was cast as soon as the prosecution proved the material was contraband, and that it was in the boot of the car owned and driven by the Accused. It was now on the Accused to rebut this presumption.

The Separate Opinion’s Analysis of Reverse Burdens

At the outset, I must applaud the opinion for having extensively discussed the issue of reverse burdens. The vociferous opposition initially faced by these clauses across the common-law world has certainly shifted to a resigned acceptance in light of the perceived needs of law enforcement. However, we are now in a time when legislatures resort to such egregious provisions at the drop of a hat, exhibiting a numbness to the severe curtailment of liberties they entail. Parts of the opinion specifically address this problem, as Justice Gupte attacks the very need of having such a clause while dealing with a substance such as beef, which, as admitted by the state, carries no intrinsic harm or threat to society as opposed to say drugs [Paragraph 215, Pages 235-236].

Moving on to considering the opinion more substantively. Justice Gupte bases his attack upon Articles 14 and 21 of the Constitution of India. After citing various decisions, both Indian and foreign [Paragraphs 202-212, Pages 210-231], Justice Gupte arrives at the following four-fold test for considering the validity of any reverse burden clause [Paragraph 213, Pages 231-232]:

  1. Is the State required to prove enough basic or essential facts constituting a crime so as to raise a presumption of balance facts (considering the probative connection between these basic facts and the presumed facts) to bring home the guilt of the accused, and to disprove which the burden is cast on the accused?
  2. Does the proof of these balance facts involve a burden to prove a negative fact?
  3. Are these balance facts within the special knowledge of the accused?
  4. Does this burden, considering the aspect of relative ease for the accused to discharge it or the State to prove otherwise, subject the accused to any hardship or oppression?

The First Condition restates that the provision must require basic facts to be established by the prosecution before talk of any presumptions and reversing burdens. This must bear enough of a ‘probative connection’ with the presumption sought to be drawn. Going back to the example of Dharampal above, we can usefully juxtapose it with the decision in Bhola Singh. In the latter, the Supreme Court set aside the conviction for a co-owner of a truck which was caught transporting contraband based on the presumption. The Supreme Court held the presumption was not attracted, as the prosecution didn’t prove any basic facts connecting the Accused with the contraband. The prosecution didn’t show the Accused knew how his truck was being used by the contractor, let alone him knowing that the truck was being used to smuggle contraband.

From this, the Second and Third Conditions address the kind of facts that are to be presumed. The idea behind this is an understanding that reverse burden clauses only make sense where the issue is lying within the ‘special knowledge’ of the Accused or to prove ‘negative facts’. ‘Negative facts’ are the existence of permissions such as licenses or tickets, which play a role where offences rely on the inexistence of these permissions. ‘Special knowledge’ is a reference to mental states of an Accused. This is trickier. Any culpable mental state will always be a matter for the ‘special knowledge’ of an Accused, inviting the argument that in every trial the burden must be on the Accused to disprove intention after the prosecution establishes the physical act. Enter, the fourth condition, which places the handbrake on extending such logic too far. It reminds us of the fundamental David v. Goliath nature of the contest though, and how difficult it is for an Accused to find and present evidence to establish his innocence beyond his own word for his deeds.

Overall, then, there is little to disagree with the framework Justice Gupte establishes for evaluating reverse burden clauses in his separate opinion. The first and fourth conditions are the actual ‘tests’ upon which the reverse burden clause will be tested. If you clear the first test, the framework requires determining what kind of presumption is placed on the Accused, before considering whether placing such a presumption is unduly burdensome and oppressive. Considering there is no such clear test available in judicial decisions at present, it is a welcome contribution which should prove helpful in providing a systematic consideration of the various reverse burden clauses we have at present, and are bound to have in the future.

Applying the Tests to Section 9-B of the Act

Section 9-B is meant to apply to every offence under the Act, i.e. offences under Sections 5, 5-A, 5-B, 5-C, 5-C and 6:

  1. Section 5 makes it an offence to slaughter cows, bulls, or bullocks in any part of Maharashtra;
  2. Section 5-A makes it an offence to transport and/or export cows, bulls or bullocks (or cause to, or offer to do so) within or outside Maharashtra in contravention of the Act or with knowledge that the animal will, or is likely to be, slaughtered;
  3. Section 5-B makes it an offence to purchase/sell/otherwise dispose of cows, bulls or bullocks (or offer to do so), knowing or having reason to believe the animal will, or is likely to be, slaughtered;
  4. Section 5-C criminalized possession of the flesh of a cow, bull or bullock slaughtered in contravention of the Act;
  5. Section 5-D criminalized possession of the flesh of a cow, bull or bullock slaughtered outside Maharashtra;
  6. Section 6 regulated the slaughtering of cows, bulls or bullocks and made it an offence to slaughter such animals without obtaining a certificate.

The obvious problem with Section 9-B is its broad and indiscriminate phrasing, placing the burden upon the Accused for proving every ingredient of the offence. In order to make the section apply to all offences in the Act, it burdened the Accused with proving “that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act.” The basic fact concept would require the State to at least prove that the cow or flesh in question was slaughtered, transported, exported, sold or purchased. It would also require that a connection be drawn between that cow or flesh in question and the Accused. Section 9-B allowed the prosecution to get away without doing anything, violating the very basic First Condition.

Justice Gupte, however, begins by specifically looking at the possession offences under Section 5-C and 5-D of the Act through the lens of the Second Condition [Paragraph 214, Pages 233-235. After immediately concluding that the Accused could never establish the ‘negative fact’ of the flesh not being that of a cow or bull, Justice Gupte immediately also concludes that the Accused could never establish that the flesh was obtained in contravention of the Act to begin with, and immediately thereafter concludes this violates his Fourth Condition of oppression. At the end of these assertions, he states that it would be easier for the State to prove these foundational facts, and absence of any such requirement was itself a problem. While having created a clear four-fold test, Justice Gupte doesn’t maintain these neat distinctions in his scrutiny of the provision on its anvil. The confusion is apparent in the Paragraph, and blunts what would have otherwise been a forceful criticism of the provision.

These objections were in some measure expected by the State. As recorded in the Separate Opinion, the Advocate General for Maharashtra conceded Section 9-B would apply only after the prosecution established certain initial facts. At one point, it is recorded how the Advocate General interpreted Section 9-B to apply only to create a presumption after every physical act had been established. This interpretation would have meant Section 9-B operated to presume that the concerned physical act – transport/export/possession etc. – was done knowing that it was contrary to the Act.

This would have made Section 9-B akin to those clauses which presume the existence of the mental state, considering it to be within the ‘special knowledge’ of an Accused. However, as Justice Gupte rightly noted, “Constitutionality cannot be a matter of concession by the State at the hearing” [Paragraph 215, Page 235-236]. Justice Gupte doesn’t stop there, though, and then proceeds to attack the ‘special knowledge’ justification offered by the Advocate General [Paragraphs 216- 217, Pages 237-240]. As I mentioned above, it is here that Justice Gupte criticizes the usage of reverse burden clauses in this context of possessing cow meat, citing the inherently harmful nature of substances such as narcotics which can warrant possession-based presumptions. This is critical, and exposes future legislation employing reverse burdens with possession based offences to closer scrutiny under Article 14 of the Constitution.

The Opinion then moves to Section 5-A and 5-B. Section 9-B would have placed the entire burden on the Accused, which was naturally unsustainable. A version that kicked in only to create a presumption that the Accused had knowledge that the offending acts of transport/export/sale/purchase would lead to slaughter or were otherwise in contravention of the Act was also found unsustainable. The basis for this conclusion was an insufficient connection existed between the prosecution proving the physical acts and the ultimate presumption of knowledge (violating the First Condition). The offence was purely based on knowledge, and presuming that very ingredient would subject the Accused to oppression (violating the Fourth Condition). Section 9-B was unconstitutional when applied together with Sections 5-A and 5-B as well.

Lastly, Justice Gupte arrives at Sections 5 and 6, which were present before the Amendment. The analysis is crisp as it is brief – Sections 5 and 6 read with Section 9-B would involve a presumption of foundational facts, which would render its use unconstitutional for a violation of his First Condition.

What to Expect Now?

Newspapers have already reported that the State of Maharashtra plans to challenge this decision in the Supreme Court. A part of me hopes this happens, as it would enable the Supreme Court to, hopefully, endorse the exposition of the Separate Opinion on reverse burden clauses. The test created is clear, and potentially allows for greater clarity in examining these provisions which currently abound our statute book. In its current form, Section 9-B is far too broad to be considered sustainable. One would assume that the chances of the Supreme Court overturning the verdict are unlikely.

The higher probability is of a modified Section 9-B emerging from the Maharashtra legislature, incorporating the position espoused by the Advocate General during the hearing before the Bombay High Court. A version of Section 9-B which explicitly places an initial burden on the prosecution would then place the focus squarely on the other condition created by Justice Gupte, of such a provision placing an Accused under oppression and undue hardship. That consideration, whenever it does happen, will prove to have a lasting impression on how reverse burden clauses are viewed in our criminal justice system.

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Filed under arbitrariness, Article 14, Reverse Onus Clauses

Guest Post – Difficult Conversations: On why the Supreme Court’s judgment in the Kerala Liquor Ban Case represents a lost opportunity to examine tough questions on discrimination

(This is a guest post by Karan Lahiri and Vrinda Bhandari. A condensed version of this piece appeared previously on Scroll.)

As a bleak year drew to a close, the Supreme Court delivered another distinctly underwhelming judgment, in The Kerala Bar Hotels Association & Anr. v. State of Kerala & Ors.. This judgment is disappointing not so much for its outcome, but because of a glaring omission.

 This case was about whether the State of Kerala’s statutory amendment restricting the grant of FL-3 licenses (i.e. bar licenses that allow the sale of Indian Made Foreign Liquor or IMFL to the public) to Five Star Hotels was constitutional. Many may feel that in upholding this measure, the Court has justifiably approved the State Government’s legitimate attempt to curb alcoholism, which has statistically been shown to be an “acute social problem”.

The most important issue, however, is unrelated to the legitimacy of the Government’s ultimate objective, or whether there is a right to trade in liquor (which the Court dwells on at length). The key question relates to the exception that has been made in favour of (20 or so) Five Star hotels in the State, and, consequently, those who can access such hotels, and whether this amounts to discrimination based on wealth and social class, violating the right to equality guaranteed by Article 14 of the Constitution. In fact, this issue was specifically raised, and is recorded in Paragraph 17 of the judgment: –

The classification at hand is based on social and economic class, as there is a clear distinction between the expense and resultantly the clientele of the hotels that have been allowed FL-3 licenses and those that have not. Therefore, a strict scrutiny test must be applied, and the Government must be asked to provide a rigorous, detailed explanation in this classification… [W]hen discrimination is based on class, it is more pernicious and needs careful judicial enquiry.”

Unfortunately, this argument is not dealt with at all. Instead, the Court quickly accepted the explanation that this exception was directed at encouraging tourism. This omission represents a lost opportunity for the Supreme Court to re-examine fundamental questions about equality and discrimination.

One Size Fits All

Are there certain kinds of discrimination that are worse than others, demanding a more searching judicial examination? As of now, when a law differentiates or discriminates between two sets or “classes” of persons, the constitutionality of this line-drawing process is examined on the basis of a two-step test. First, a Court looks at whether there is an “intelligible differentia”. In other words, the line dividing two or more groups must be clear, based on discernible characteristics shared by members of each group. Second, it examines whether this “differentia” bears a rational relation to what the impugned law seeks to achieve.

The problem is that this is a one-size-fits-all test. All laws, essentially, differentiate between two or more groups of individuals. The Delhi Government’s odd-even formula to curb pollution differentiates between different groups (by exempting CNG vehicles, for instance), but it is, intuitively, different from a law that, let us say, penalizes begging on the road by the indigent. Can the same test be used for both sets of cases?

The “strict scrutiny test”, referred to in the judgment, is a concept that is making inroads into our jurisprudence, and is based on a concept we have borrowed from the U.S. When a law in the U.S. is tested on the anvil of equality, the default rule is that it will be upheld if it is rationally related to a legitimate government purpose. However, where the law makes a suspect classification (i.e. discrimination on the basis of race, religion, nationality etc., or analogous “discrete and insular minorities”), the more rigorous “strict scrutiny” test is applied. To survive strict scrutiny: –

  1. A law must be narrowly tailored to achieve a compelling government interest.
  2. It must be the least restrictive means for achieving that interest.

Notice that this test weighs in the importance of the State’s ultimate objective, and ensures that the means used to reach that objective are closely fitted to the ends, and that these are the least onerous means. Further, the fact that “suspect classifications” triggers strict scrutiny signals that the nature of the rights being affected by a discriminatory law are factored in, where some kinds of discrimination (i.e. on the basis of race, nationality etc.) are worse than others (e.g. a law exempting CNG vehicles from Delhi’s odd-even rule).

Just to clarify, this is not about whether the “strict scrutiny” test is the best test out there. What we are saying is that this was an opportunity for the Court to re-examine what goes into making a robust litmus test in equality cases.

Conversations on Equality and Class Discrimination

First, the Court should have begun a useful conversation on whether the dominant two-step test used in India is adequate to analyze all equality-related cases. As Dr. Tarunabh Khaitan points out, the test used in India is inadequate, because it is blind to the impact on, and the nature of the group being affected, as it does not “balance” the State’s interests against the rights of affected persons. Further, it does not look at the importance of the State interest involved, or whether there is a less onerous alternative. Putting it simply, as per the dominant two-step test, described above, if measure “X” is challenged on the basis that it is discriminatory, it is, simply put, based on whether it is reasonable and suitable to achieve objective “Y”, namely the Government’s end goal. The law in India, as it exists looks only at whether X and Y are reasonably connected, without looking at who measure X is impacting, or looking closely at the nature of objective Y.

Secondly, the Court should have entered into whether certain classifications are inherently “suspect”, justifying closer scrutiny compared to other more benign cases of differentiation. A good textual starting point would have been Article 15(1), which enjoins the State from discriminating on the basis of religion, race, caste, sex and place of birth. It could then have gone on to examine whether discriminating on the basis of wealth and social class is analogous.

We believe that this analysis, on discrimination based on social class, should have gone something like this.

  1. Given that both the Preamble and Article 38(2), have woven equality of status into the Constitution, there is a constitutional justification for treating discrimination based on status and social class as a “suspect classification”, warranting a higher degree of scrutiny, as opposed to cases where an underlying constitutional norm is not violated.
  2. Further, the Court ought to have looked at the additional question of whether the poor in India constitute what Dr. Khaitan calls a “vulnerable group”. In our opinion, poverty is about more that the lack of money or assets. It is characterized by a lack of social membership, meaningful citizenship, and dignity. Such a structural conception of poverty helps explain why the poor, as a separate class – independent of their caste or religious identities – are marginalized actors with little influence in the political process,[1] deserving of judicial protection by means of more rigorous standard of scrutiny.
  • Applying strict scrutiny standard, we believe the Kerala amendment ought to have been struck down. This is because even a universal ban on public drinking would have been a more narrowly tailored solution to the State’s objective of reducing alcoholism, since alcoholism afflicts rich and poor alike.

We must remember here that the Kerala amendment is about more than the price of alcohol. It is fundamentally different from a law raising the MRP of liquor, or imposing a tax on liquor across the board. What makes the Kerala amendment “pernicious” is that it singles out only those with the means to purchase liquor in a Five Star hotel, as also the status to enter and access a Five Star hotel, thereby giving them the exclusive privilege of drinking in public. At the same time, poorer sections of the population, who do not have the status to access such elite establishments (let alone afford the prices), are deprived of this privilege. Surely, the rich are not immune to alcoholism? However, this is almost exactly what the Court seems to suggest, when it says – “There is also little scope for cavil that the guests in Five Star hotels are of a mature age; they do not visit these hotels with the sole purpose of consuming alcohol.” The Supreme Court has, previously, in the Maharashtra dance-bars case, frowned on such logic, stating: –

 “Our judicial conscience would not permit us to presume that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency.”

The Supreme Court itself is not blind to fact that the Five Star hotel rating implies both a higher price and higher status for access. In dealing with allegations that Five Star hotels have opened out some of their premises for consumption of liquor at depressed rates in less salubrious surroundings, the Court encourages the State to end such “malpractice”, because, according to it, Five Stars are “violating the ambiance which they portray by enabling drinking in specially created bars at lower prices.”

What we have outlined above is what we believe to be the correct line of reasoning. We believe that gradualism and experimentation cannot be used as arguments to defer to legislative judgment (as the Court has done in this case), when groups are singled out based on social class and status. You may not agree either with the reasoning or the result we have proposed. That’s what makes Constitutional Law exciting – the fact that it inspires healthy and vibrant debate. Unfortunately, our Supreme Court has chosen to steer clear of such debate – a strange choice for an institution in a democratic polity, given that conversation and debate lie at the heart of democracy.

Karan Lahiri and Vrinda Bhandari are both practicing lawyers. Karan Lahiri assisted in representing one set of Appellants in the Kerala liquor ban case before the Supreme Court.

[1] There is empirical evidence to suggest that the poor, India, rarely come together as a class in a way that makes democratic institutions respond to their preferences. This ties is with the writings of certain American Constitutional scholars, who speak of the poor as an “anonymous and diffuse” group that cannot organize itself effectively.

Blog Editor’s Note: Previously, I’ve made the case for a higher threshold of Article 14 scrutiny in election cases here (unfortunately, we know how that turned out!), and Mihir wrote a guest post examining how the arbitrariness doctrine serves an alternative to the unsatisfactory one-size-fits-all nature of the rational review standard. To the persuasive arguments made in this post, I have a quick addition: a higher threshold of scrutiny would insist not only on the showing of a compelling State interest and a narrowly-tailored law, but would also place the evidentiary burden upon the State to demonstrate the connection. For instance, in this case, instead of making the State’s case for it by the blanket observation that people going to 5-Star Hotels are “more mature”, the Court would require the State to bring hard evidence forward showing that drinkers in 5-Star Hotels are less prone to be alcoholics, or indulge in violence, or something of that sort. Needless to say, it’s rather unlikely that there would be evidence of this sort forthcoming, and the law would have to fail. The purpose of this imposing this evidentiary burden is precisely to forestall the State from relying upon gross and invidious stereotypes about people (“uneducated persons can’t distinguish between right and wrong”, “5-Star alcohol drinkers are mature”) which, in itself, is a profound denial of the principle of equal concern and respect.


Filed under Article 14, Equality